Tina Thompson v. Michael J. Astrue, No. 2:2008cv01603 - Document 17 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For all of the above reasons, the Agencys decision is affirmed. (rp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 TINA THOMPSON, Plaintiff, 11 12 13 v. 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 08-1603 PJW MEMORANDUM OPINION AND ORDER 16 17 Before the Court is Plaintiff s appeal of a decision by Defendant 18 Social Security Administration ( the Agency ), denying her application 19 for Supplemental Security Income benefits ( SSI ). 20 Agency s decision that Plaintiff was not disabled within the meaning 21 of the Social Security Act is supported by substantial evidence, it is 22 affirmed. 23 Because the On December 8, 2005, Plaintiff applied for SSI. (Administrative 24 Record ( AR ) 29.) After the Agency denied the application, Plaintiff 25 requested and was granted a hearing before an Administrative Law Judge 26 ( ALJ ). 27 counsel at the hearing and testified. 28 the ALJ issued a decision denying benefits. (AR 33-40.) On April 30, 2007, Plaintiff appeared with (AR 187-202.) On May 24, 2007, (AR 7-16.) After the 1 Appeals Council denied Plaintiff s request for review, (AR 3-5), she 2 commenced this action. 3 Plaintiff claims that the ALJ erred by failing to properly 4 consider: 1) the treating psychologist s mental status examination 5 findings; 2) the treating psychologist s work capacity evaluation; and 6 3) the written testimony of Plaintiff s sister Latania Toliver. 7 (Joint Stip. at 3-4, 7-8, 10-11.) 8 the Court finds that these claims are without merit. For the reasons set forth below, 9 In her first claim of error, Plaintiff contends that the ALJ 10 improperly rejected, without explanation, the findings contained in a 11 mental status examination form filled out by her treating psychologist 12 Rigoverto Briceno. 13 the Court disagrees. 14 (Joint Stip. at 3-4.) For the following reasons, Plaintiff first went to see Dr. Briceno on September 7, 2006. 15 During this first visit, Dr. Briceno prepared a mental status 16 examination form, indicating that Plaintiff appeared anxious, had poor 17 concentration, and was highly distractible. 18 noted that her memory was impaired, that her behavior was destructive, 19 and that she reported experiencing visual and auditory hallucinations. 20 (AR 185.) 21 (AR 185.) He also In her decision, the ALJ highlighted these findings but also 22 noted that Dr. Briceno had reported on the same form that Plaintiff 23 was fully oriented, her cognition, insight, and judgment were intact, 24 and she displayed normal affect. 25 pointed out that Plaintiff had reported to Dr. Briceno that she was 26 attending school and caring for her two sons. 27 into account the less severe diagnosis of examining psychiatrist David 28 Bedrin (discussed infra), the ALJ concluded that Plaintiff s history (AR 13.) 2 In addition, the ALJ (AR 13.) After taking 1 of bipolar disorder was a severe impairment, which would cause slight 2 restrictions in activities of daily living and social functioning, and 3 moderate limitations on ability to perform activities requiring 4 concentration, persistence, and pace. 5 (AR 11, 14.) Plaintiff takes exception to these findings. Though she concedes 6 that the ALJ considered Dr. Briceno s mental status examination in the 7 decision, she argues that the ALJ s failure to discuss the report of 8 visual and auditory hallucinations, the aggressive-destructive-poor 9 impulse control problems, the excessive crying, and the isolated and 10 withdrawn demeanor amounts to a rejection of these findings without 11 adequate justification. 12 The Court disagrees. The starting point for a discussion of the ALJ s treatment of the 13 treating psychologist s report is the ALJ s credibility finding. 14 found that Plaintiff was not credible, (AR 19), and the record 15 supports this finding. 16 grossly exaggerated her condition and, at the very worst, flat out 17 lied about it in a form she filled out and submitted to the Agency. 18 (AR 66-73.) 19 described her activities from the time she woke up until the time she 20 went to bed as follows: She For example, Plaintiff, at the very least, In that form, entitled Function Report-Adult, Plaintiff 21 I just sit around[,] cry, rock back and forth[,] and talk to 22 myself and God and try to be quiet and try to rest to [the] 23 best of my knowledge. 24 advils. 25 26 And take my motrins and milk [and] (AR 66.) The person Plaintiff described to the Agency in this form is 27 someone who would likely be institutionalized, not someone who 28 reported at various times to various doctors that she was taking care 3 1 of herself and her 13- and 15-year old sons and going to school. 2 Further, and importantly, Plaintiff has not challenged the ALJ s 3 credibility finding, which undermines her claim that the ALJ erred in 4 rejecting the treating psychologist s findings without proper 5 justification. 6 ALJ s adverse credibility finding, she cannot argue that the ALJ erred 7 in her decision not to credit the treating psychologist s assessment, 8 which was based in large part on Plaintiff s statements to the doctor. 9 See Siska v. Barnhart, No. C 00-4788 MMC, 2002 WL 31750220, at *3 10 11 Where, as here, a claimant does not challenge the (N.D. Cal. Dec. 4, 2002). Turning now to the merits of Plaintiff s claim, the Court finds 12 that the ALJ did not err. 13 status examination report were not really findings, but, rather, 14 parroting of what Plaintiff told the doctor that she was experiencing. 15 Dr. Briceno did not witness Plaintiff crying, rocking, seeing things, 16 or hearing voices. 17 was fairly stable, except, perhaps, for some anxiety. 18 Plaintiff was clean, appropriately dressed, spontaneous, friendly, 19 cooperative, and oriented. 20 cognition, insight, and judgment intact. 21 are consistent with the ALJ s ultimate conclusion that Plaintiff s 22 psychiatric impairments did not prevent her from working. 23 Briceno s findings in the mental status examination report were Dr. Briceno s findings in the mental (AR 184-85.) What he did observe was someone who (AR 185.) 24 25 26 27 28 4 (AR 185.) Her affect was normal and her (AR 185.) These findings Because Dr. 1 based on Plaintiff s allegations, and because Plaintiff was not 2 credible, her argument that the ALJ erred in rejecting these findings 3 is not persuasive.1 4 Plaintiff s complaint that the ALJ failed to fully discuss Dr. 5 Briceno s findings is also without merit. 6 Briceno s findings in her decision. 7 fully evaluate every entry Dr. Briceno made, so long as her decision 8 was supported by substantial evidence, which it was. 9 rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (holding 10 that ALJ s failure to discuss particular medical report was not error 11 where the record showed the ALJ did not selectively analyze the 12 evidence. ). 13 reversal.2 14 The ALJ summarized (AR 13.) She was not required to See Howard ex For this reason, this claim does not warrant remand or In her second claim of error, Plaintiff contends that the ALJ 15 improperly rejected Dr. Briceno s work capacity evaluation findings. 16 (Joint Stip. at 7-8.) Again, the Court disagrees. 17 18 19 1 20 21 22 23 24 25 26 27 28 The Court also notes that it appears that Plaintiff was focused throughout her treatment sessions with Dr. Briceno on her financial condition, even confessing to him during one session that she was worried about her SSI application. (AR 180.) 2 The ALJ also rejected Plaintiff s claims because she found that Plaintiff had not established that her condition had lasted or would last for 12 months, as required under the regulations. (AR 14.) The regulations do require a 12-month period of infirmity, see 20 C.F.R. 416.927(d), and the records establish that Plaintiff underwent treatment for only four months, from September 7, 2006 to January 22, 2007. (AR 178-86.) The only other evidence relating to the duration of Plaintiff s psychiatric problems was her written submissions to the Agency and her testimony at the hearing, which were not believed. This is another specific and legitimate reason for rejecting Plaintiff s claimed impairment. 5 1 On a Work Capacity Evaluation (Mental) check-the-box form dated 2 October 30, 2006, Dr. Briceno indicated that Plaintiff would have 3 marked limitation in her ability to do such things as remember 4 locations and work-like procedures; carry out very short and simple 5 instructions; sustain an ordinary routine without special supervision; 6 ask simple questions or request assistance; and maintain socially 7 appropriate behavior or adhere to basic standards of neatness and 8 cleanliness. 9 extreme limitation in her ability to do such things as understand 10 and remember very short and simple instructions; maintain attention 11 and concentration for extended periods; maintain regular attendance, 12 and be punctual; and interact appropriately with the general public. 13 (AR 155-56.) 14 severe functional limitations assessed by examining psychiatrist 15 Bedrin. 16 (AR 155-56.) He also indicated that she would have The ALJ rejected these findings and adopted the less (AR 14.) This was not error. Though, as a general rule, a treating doctor s opinion is given 17 priority over the opinions of non-treating doctors, an ALJ may reject 18 a treating doctor s opinion that is contradicted by another doctor s 19 opinion so long as she provides specific and legitimate reasons 20 supported by substantial evidence in the record for doing so. 21 v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). 22 See Orn Dr. Briceno s findings were squarely contradicted by Dr. 23 Bedrin s, who examined Plaintiff in July 2006. 24 report, Dr. Bedrin noted many of the same complaints Dr. Briceno did. 25 (127-28.) 26 auditory hallucinations for three years, and that for eighteen months 27 she had experienced visual hallucinations of something passing by out 28 of the corner of her eye. (AR 13, 14.) In his Plaintiff told Dr. Bedrin that she had been experiencing (AR 127.) 6 He noted her feelings of 1 paranoia, intermittent depression, and difficulties in sleeping and 2 eating. 3 and relaxed, did not appear depressed or anxious, denied suicidal or 4 homicidal ideations, denied any hallucinatory, delusional, or 5 psychotic symptoms during the interview, and was oriented. 6 (AR 127, 128.) He also observed that Plaintiff was pleasant (AR 130.) Dr. Bedrin diagnosed bipolar disorder, not otherwise specified, 7 by history, and alcohol abuse, currently in remission, and assigned a 8 GAF score of 59. 9 function normally in the workplace, but that she might have difficulty 10 11 (AR 132.) He concluded that Plaintiff could performing complex tasks due to memory problems. (AR 132.) The ALJ was tasked with deciding which opinion to accept and 12 which to reject. 13 and legitimate reasons supported by substantial evidence if she chose 14 Dr. Bedrin s findings over Dr. Briceno s. 15 Dr. Briceno s findings because they were not supported by the findings 16 in his mental status examination or by the progress notes that 17 followed. 18 September 2006, less than two months before he completed the work 19 capacity evaluation, Dr. Briceno found that Plaintiff was clean and 20 that her attire and eye contact were appropriate. 21 contrast, in the work capacity evaluation he indicated that she would 22 have a marked limitation in her ability to maintain socially 23 appropriate behavior and to adhere to basic standards of neatness and 24 cleanliness. 25 2006 that Plaintiff s judgement and insight were intact and her 26 thought process goal-directed. 27 indicated that she would be extremely limited in her ability to make 28 work-related decisions and markedly limited in her ability to ask In doing so, she was required to provide specific She did. She discounted In the mental status examination, which took place in (AR 156.) (AR 185.) By Similarly, Dr. Briceno found in September (AR 185.) 7 Yet, in October 2006, he 1 simple questions, request assistance, be aware of normal hazards, and 2 take appropriate precautions. (AR 155, 156.) 3 Though the clinical progress notes do not reveal any outright 4 inconsistencies, they consist only of Dr. Briceno s recordation of 5 Plaintiff s subjective complaints, i.e., that she felt depressed, 6 irritable, and worried, and the doctor s advice that she adopt 7 strategies to express anger more appropriately and to feel more 8 motivated. 9 extreme limitations indicated by Dr. Briceno in October 2006. (AR 178-82.) As such, the notes do not support the The ALJ 10 was entitled to rely on these reasons for adopting Dr. Bedrin s 11 opinion and rejecting Dr. Briceno s. 12 278 F.3d 948, 957 (9th Cir. 2002) (affirming rejection of self- 13 contradictory and unsupported treating opinion in favor of examining 14 opinion); Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995) 15 (affirming ALJ s rejection of treating opinion which was conclusory 16 and self-contradictory). 17 where the ALJ determined that Plaintiff was not credible and Plaintiff 18 has not challenged that finding. 19 such, the Court finds that this claim is without merit. 20 See, e.g., Thomas v. Barnhart, This is particularly true in this case, Siska, 2002 WL 31750220, at *3. As In her third claim of error, Plaintiff contends that the ALJ 21 failed to consider the testimony of her sister Latania Toliver. 22 (Joint Stip. at 10-11.) 23 Function Report-Third Party, in which she reported that Plaintiff 24 does not do anything except talk about her headaches, talk to 25 herself, and rock. 26 really bad mood swings, that she no longer does chores, and that she 27 forgets a lot following instructions. 28 not consider Toliver s testimony. Toliver submitted a report, titled Adult (AR 74.) She also reported that Plaintiff has (AR 75, 76, 79.) The ALJ did The Agency concedes that this was 8 1 error but argues that the error was harmless. 2 (Joint Stip. at 11-13.) For the following reasons, the Court agrees. 3 An ALJ is required to consider lay witness testimony, which 4 includes not only live testimony at the administrative hearing but 5 also written submissions, and may only reject it for reasons that are 6 germane to the witness. 7 1050, 1053 (9th Cir. 2006). 8 error. 9 conclude that no reasonable ALJ, when fully crediting the testimony, Stout v. Comm r, Soc. Sec. Admin., 454 F.3d Failure to discuss lay testimony is The error is harmless, however, if the Court can confidently 10 could have reached a different disability determination. 11 1056. 12 Id. at Had any reasonable ALJ considered Ms. Toliver s submission, she 13 would not have concluded that Plaintiff was disabled. 14 Toliver s report makes clear that she does not really know about 15 Plaintiff s daily routines and how they are (or are not) affected by 16 her condition. 17 [Plaintiff] prepare []her own meals? , Toliver checked the box marked 18 No, but explained, I don t really know if she does or not. 19 76.) 20 account/use checkbook money orders? , Ms. Toliver checked the box 21 marked No, and then wrote I don t know in response to the 22 instruction, Explain all NO answers. 23 responded to the question, What are []her hobbies and interests?, 24 with None at all, TV sometimes, church sometimes, and then stated I 25 don t know in response to the follow-up question, How often and how 26 well does []she do these things? 27 don t know in response to questions about Plaintiff s social 28 activities, her ability to get along with authority figures, whether First, Ms. For example, in response to the question Does (AR In response to the question, Is []she able to: handle a savings (AR 77.) (AR 78.) 9 Ms. Toliver Ms. Toliver answered I 1 she had ever been fired, and how well she handled stress. (AR 78, 79, 2 80.) 3 inconsistent regarding Plaintiff s abilities. 4 states that Plaintiff does not do anything except talk to herself 5 and rock, she also states that Plaintiff prepares food for her sons, 6 likes to walk, goes shopping, pays bills, counts change, goes to 7 church, and watches TV. 8 Plaintiff was physically limited in various ways, (AR 79), no doctor 9 found that to be the case, and Plaintiff does not challenge the ALJ s Additionally, Ms. Toliver s answers are vague and often (AR 74-78.) For example, though she Though Ms. Toliver reported that 10 finding that the only physical limitation she had was her hearing. 11 Because Ms. Toliver s testimony, even if credited, would not have 12 resulted in a finding of disability, this claim does not merit 13 reversal or remand.3 Stout, 454 F.3d at 1056. 14 For all of the above reasons, the Agency s decision is affirmed. 15 IT IS SO ORDERED. 16 DATED: August 26 , 2009. 17 18 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 19 20 21 S:\PJW\Cases-Soc Sec\THOMPSON,T 1603\Memo_Opinion.wpd 22 23 24 25 26 27 28 3 Ms. Toliver also noted that Plaintiff was not good at following instructions. (AR 79.) Consistent with this, the ALJ concluded that Plaintiff was restricted to work not involving more than simple tasks at a routine pace. (AR 15.) 10
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